Citation Nr: 9819864
Decision Date: 06/29/98 Archive Date: 07/06/98
DOCKET NO. 97-28 800 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to service connection for sclerosing cholangitis
with cirrhosis, status post liver transplant, claimed as
secondary to Agent Orange exposure.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Associate Counsel
REMAND
The veteran had active service from May 1966 to April 1968.
Initially, the Board of Veterans’ Appeals (Board) notes that
the only issue certified for appeal by the regional office
(RO) was entitlement to service connection for sclerosing
cholangitis with cirrhosis, status post liver transplant,
claimed as secondary to Agent Orange exposure. However, the
Board further notes that in a rating decision of June 1997,
the RO denied service connection for a skin condition, liver
ailment, and colon condition as a result of herbicide
exposure, and that this decision was followed by a notice of
disagreement in July 1997. While the RO thereafter issued a
statement of the case as to the issue of entitlement to
service connection for sclerosing cholangitis with cirrhosis,
status post liver transplantation, claimed as secondary to
Agent Orange exposure in August 1997, the Board finds that
the veteran’s notice of disagreement of July 1997 entitled
the veteran to a statement of the case as to the issues of
entitlement to service connection to skin and colon
disorders, claimed as secondary to Agent Orange exposure.
As there is no indication in the record that the veteran
withdrew these additional issues from his appeal, the Board
is therefore required to remand this matter in order for the
RO to cure this procedural defect. 38 C.F.R. § 19.9 (1997).
Upon receipt of the statement of the case, the veteran must
thereafter timely file a substantive appeal before the case
is returned to the Board. Due to the overlapping
symptomatology of the underlying disorders, the Board finds
that the issues of entitlement to service connection to skin
and colon disorders, claimed as secondary to Agent Orange
exposure, are inextricably intertwined with the issue of
entitlement to service connection for sclerosing cholangitis
with cirrhosis, status post liver transplant, claimed as
secondary to Agent Orange exposure, and that all of these
issues will therefore be remanded to the RO to ensue full
compliance with due process requirements. Harris v.
Derwinski, 1 Vet. App. 180 (1991).
Despite the Board’s decision to remand this case for due
process considerations, the Board would remind the veteran
that he still has the obligation of providing evidence to
support a well-grounded claim. Mere allegations in support
of a claim that a disorder should be service connected are
not sufficient; the veteran must submit evidence in support
of a claim that would “justify a belief by a fair and
impartial individual that the claim is plausible.”
38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609,
611 (1992).
The Board must point out that under the current case law, the
United States Court of Veterans Appeals (Court) has held that
the basic elements of a well-grounded claim for service
connection, and the type of evidence required to establish
each element are as follows:
(1) Competent evidence of current disability (medical
diagnosis); Rabideau v. Derwinski, 2 Vet. App. 141, 144
(1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)
(2) Evidence of incurrence or aggravation of disease or
injury in service (lay or medical evidence); Cartwright v.
Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet.
App. 465 (1994).
(3) Evidence of a nexus between the in-service injury or
disease and the current disability (Medical evidence or
presumption that certain disabilities manifests within
certain periods are related to service); Grottveit v. Brown,
5 Vet. App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995).
Case authority for the use of presumptions to provide a nexus
is in Traut v. Brown, 6 Vet. App. 495, 497 (1994) and
Goodsell v. Brown, 5 Vet. App. 36, 43 (1993).
Caluza v. Brown, 7 Vet. App. 498, 506 (1995).
The Board observes that preliminary review of the record does
not reveal under element (3) any medical evidence that
connects any current liver, colon, or skin disorder to
anything that occurred to the veteran during his period of
active service such as exposure to Agent Orange, or to a
disorder that has been found to warrant presumptive service
connection based on exposure to Agent Orange under 38 C.F.R.
§§ 3.307 and 3.309 (1997). To the extent that the veteran
believes that his lay assertions alone are sufficient to
forge a connection between current disability and disease or
exposure to Agent Orange during service, he is cautioned that
under the controlling case law, this belief is mistaken.
Accordingly, to ensure that the Department of Veterans
Affairs (VA) has met its duty to assist the claimant in
developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The appellant should be provided with
an opportunity to submit additional
evidence in support of his claim.
2. If the veteran provides additional
evidence in support of his claim, the RO
should thereafter readjudicate the issues
of entitlement to service connection for
a skin disorder, sclerosing cholangitis
with cirrhosis, status post liver
transplant, and a colon disorder, claimed
as secondary to Agent Orange exposure.
If the benefits sought on appeal remain
denied, the appellant and his
representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
3. If the veteran does not provide
additional evidence in support of his
claim, the RO must at least provide the
veteran with a statement of the case as
to the issues of entitlement to service
connection for skin and colon disorders,
claimed as secondary to Agent Orange
exposure. Thereafter, the veteran must
file a timely substantive appeal as to
these issues prior to the return of this
matter to the Board. If the veteran does
not file a timely substantive appeal as
to these issues, they will not be
considered proper subjects for appellate
consideration.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome as to this issue. The appellant need take no action
until otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, Veterans’ Benefits Administration (VBA)’s
ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the
ROs to provide expeditious handling of all cases that have
been remanded by the Board and the Court. See M21-1, Part
IV, paras. 8.44-8.45 and 38.02-38.03.
Richard B. Frank
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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